Goodison Nine Limited v Athman & 4 others; Athman & 3 others (Plaintiffs to the Counterclaim); Gooodison Nine Limited & 5 others (Defendant to the Counterclaim) (Environment & Land Case 20 of 2024) [2025] KEELC 322 (KLR)
The bottom line
#The Environment and Land Court in Malindi refused to strike out a land counterclaim, ruling earlier cases never conclusively decided the parties' rights.
What this practically means
#Executive summary
#Key legal issues
#Whether the counterclaim is res judicata Malindi ELC Petition No 29 Of 2022
It is not, because the petition and cross-petition were dismissed without a conclusive determination of the parties' rights on the merits
The court in Petition No 29 of 2022 declined to find for either the petitioner or the cross-petitioners, stating none provided the real evidence required for a comprehensive and conclusive judgment on the constitutional issues, and even suggested a rematch may be necessary. A matter not heard and determined on the merits does not trigger res judicata.
Whether the counterclaim is res judicata Malindi ELC Case No 62 Of 2012 and the appeal in MSA CA No 128 Of 2018
It is not, because the counterclaimants were not parties to those proceedings and Lamu/Manda Island/259 was only mentioned in passing and its title never nullified
The real subject matter of the 2012 petition and the appeal were parcels Lamu/Manda Island/88 and 176-185, whose titles alone were nullified. Plot 259 was mentioned only once in the judgment and the respondents there never identified who claimed interest in it. The present counterclaimants were not parties to either matter, so neither privity nor identity of parties exists.
Whether the defence and counterclaim are barred by judicial estoppel
No; asserting the illegality of a cancellation is not an admission that the title was invalid
The counterclaimants challenged the cancellation of their title because they believed it was valid and the cancellation illegal. Since that petition did not determine whether the cancellation was illegal, their belief in the validity of their title persists. Applying estoppel here would unjustly bar parties from pursuing their rights.
Whether the unsigned supporting affidavit vitiates the application
It is a technicality that would not change the outcome since the application fails on substantive grounds
Although the affidavit supporting the application was not signed at all, the court deliberately declined to spend time on technicalities, dealt with the substantive issues first, and found the application would still have failed even if the affidavit had been executed.
Legal principles established
#- Res judicata applies only where the former suit was heard and finally determined on the merits; a dismissal without a conclusive determination on the merits does not trigger the doctrine
- The ingredients of res judicata are identical issues, same parties or parties claiming under them, competent jurisdiction, and conclusive determination
- A party's challenge to the cancellation of its title does not estop it from asserting the validity of that title in later proceedings
- An unsigned affidavit is a technical defect the court may overlook where the application would in any event fail on substance
Court orders
#- 1.The preliminary objection dated 5/4/2024 and the notice of motion dated 30/4/2024 are dismissed with costs to all the other parties in the case
- 2.All parties to upload their submissions and replies in relation to the plaintiff's application dated 15/2/2024 on the CTS portal, serve them, and upload affidavits of service on the CTS portal
- 3.The matter to be given a last mention before ruling on 13/2/2025 for issuance of a ruling date
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (interlocutory application within a pending suit); Section 7 of the Civil Procedure Act invoked on res judicata
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Goodison Nine Limited v Athman & 4 others; Athman & 3 others (Plaintiffs to the Counterclaim); Gooodison Nine Limited & 5 others (Defendant to the Counterclaim) (Environment & Land Case 20 of 2024) [2025] KEELC 322 (KLR)", Case Analysis (2025). Not stated in the ruling (Notice of motion dated 30/4/2024; Preliminary objection dated 5/4/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/322/eng@2025-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.